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en-usTechdirt. Stories filed under "archives"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 29 Jan 2015 12:35:00 PSTCopyright Law Is Eating Away At Our Cultural History: And It's Time To Fix ThatMike Masnickhttps://www.techdirt.com/articles/20150129/06091629847/copyright-law-is-eating-away-our-cultural-history-its-time-to-fix-that.shtml
https://www.techdirt.com/articles/20150129/06091629847/copyright-law-is-eating-away-our-cultural-history-its-time-to-fix-that.shtmlreleasing over 2,000 MS-DOS video games, playable in the browser. As I noted to someone on Twitter, it was like half of my childhood on the screen. What I found truly amazing was that with every excited Twitter or Facebook comment I saw, it was about a different game. For me, it was things like Oregon Trail, Pole Position, Lode Runner and Championship Baseball (and also some college memories of avoiding studying by playing Scorched Earth -- hey, at least it sorta felt like I was learning physics). But for others it was something entirely different. Each person seemed to latch onto their own moment in history (and a new chance to procrastinate or waste time by reliving that experience).

This, of course, was only the latest in an ongoing effort by the Internet Archive, led by Jason Scott (who has been involved in all sorts of archival efforts of internet content and video games and made a documentary about text adventure games called Get Lamp). Andy Baio has a great post up discussing this work and how important it is that it's being done by the Internet Archive, rather than a giant corporation. As he notes, while Google used to really focus on similar archival projects, in the recent past, it seems to have let that focus fade, which is quite disappointing.

Of course, in discussing the possible reasons why Google's archival efforts have stagnated, Baio tosses out a few suggested reasons, including the lack of profitability, but also, the potential legal liability. After all, Google is still fighting in court about the Google book scanning project, and the focus of that project seems much more about pushing people to buy books, rather than being able to do useful searches through that huge corpus of knowledge.

Baio is (quite reasonably) thrilled that the Internet Archive has been willing and able to step up, and notes that the video game archive shows how Archive.org is a lot more than just saving old websites: it's about preserving our cultural history.

But, other than that one offhand mention of the risk of legal liability to explain Google's dropping the ball on similar stuff, Baio leaves out the related issue of copyright and the DMCA (which he knows about all too well from personal experience). This isn't a fault of Baio's article, he's just focused on something else. But the copyright aspect is really important -- especially right now.

That's because the main reason why the Internet Archive is allowed to do this kind of thing is because it was lucky enough to get one of the semi-arbitrary DMCA triennial review exemptions that lets them break old DRM for the purpose of archiving vintage software. But, even then, it's not entirely clear that what the Internet Archive is doing is fully protected today. Furthermore, as we saw a few years ago with unlocking mobile phones, the Librarian of Congress can simply delete those exemptions on a whim.

And, right now, we're in the middle of the DMCA exemption process yet again, with a bunch of requests on tap -- including an important one from the EFF [pdf] to allow such activities:

Proposed Class: Literary works in the form of computer programs, where circumvention is
undertaken for the purpose of restoring access to single-player or multiplayer video gaming on
consoles, personal computers or personal handheld gaming devices when the developer and its
agents have ceased to support such gaming.

Baio's article talks about how projects like the one at the Internet Archive are magical in preserving history and giving us access to "all of computing history... accessible from a single click." This is incredibly important -- but copyright law is standing in its way. This isn't about "piracy" in any real sense. The games and software being discussed are not being sold anywhere. The hardware that it worked on is long gone. This is about preserving our cultural history -- something that industry appears to have no interest in doing, in part because copyright law itself makes it so risky.

If you think things like this are important too, I also suggest heading over to the Digital Right to Repair site where they've made a really easy form for you to share your thoughts with the Copyright Office as it considers the latest exemption requests. The Copyright Office also has its own form, but it's government-level cumbersome. The Digital Right to Repair site is much easier to use. It has some pre-selected text for the various exemptions being debated, but also (very easily) allows you to write your own thoughts (which you should).

One of the key factors in the decision over what to exempt and what not to exempt is a demonstrated "market need" and you can help make the case by sharing your story with the Copyright Office.

Bono thought that Chinese internet censorship was a good example of how the US should deal with music piracy. Viacom was in the thick of its lawsuit with YouTube, asking the court of summary judgment, but redacting nearly the entire argument because apparently the reasons were secret. Sony Pictures was refusing to send out some screener DVDs to promote its own films for the Oscars, because it was worried about piracy. A Finnish indie label claimed that it wouldn't sign any new bands unless the government magically stopped piracy. After that got some attention the company deleted that statement, and appears to still be releasing music. An analysis of the impact of the leak of the Wolverine film suggested that the leak may have actually helped at the box office. We were, once again, pointing out how there's basically no punishment for filing bogus DMCA claims -- and this was in the days before millions were sent every few days.

France was looking to put in place a right to forget law, while also floating an idea to just tax internet companies to fund record labels. France really, really hates the internet, huh? Meanwhile there was a good proposal in the UK to require copyright holders to have to demonstrate actual damages from infringement (unfortunately, that didn't go anywhere). UFC announced that it was going to sue individual downloaders even though the company knew that the cost of suing was more than any "loss." Speaking of copyright infringement, we wondered how some people could argue that inline linking was infringement, seeing as it's little different than deeplinking, which is legal. Of course, this fight lives on today over embedding. Meanwhile, in Singapore, remote DVRs were declared infringing, the opposite of the Cablevision case in the US.

As you may have heard, ten years ago I uttered the phrase "the Streisand Effect" for the first time, and that may be the most popular thing I've ever done. Yet another court told the RIAA that it can't subpoena info on downloaders without first filing a lawsuit (something some copyright trolls still don't believe). In response, the BSA asked Congress to change the law to force ISPs to hand over info (thankfully, that didn't happen). Someone conducted a whole study to point out that the entertainment industry was worried about file sharing.

This was the week that AOL announced it was buying Time Warner, and the entire internet landscape shifted. But not necessarily in a good way (though I still argue the idea was sound, the execution was dreadful). Fifteen years ago, Steve Jobs also dropped the "interim" part of his "interim CEO" title that he'd taken upon his return to Apple. With the failure of any doom and gloom scenarios post Y2K, some were angry at those who predicted the end of the world. Meanwhile, the SF Chronicle was predicting what would happen if tech stocks crashed (which they did 3 months later).

There was some discussion about the idea of using GPS to automatically slow down cars that were speeding (bad idea).
I was excited about MP3 watches at CES (I even had one for a few years, and it was great).

One Hundred And Twenty One Years Ago:

A 47-frame film of Fred Ott sneezing, created by WK Dickson (working for Thomas Edison), was filmed and given a copyright, making it "the earliest surviving copyrighted motion picture" thus kicking off the movie industry's over-infatuation with copyright that lives on to this day.

Movie studios started planning how to stop Netflix from showing their films (which is why Netflix still has a limited selection of streaming movies). This was also the week that Viacom realized that of all the videos it had sued YouTube over, it had actually uploaded over 100 of them itself -- meaning both that they were fully licensed and proving the point that if Viacom can't even tell which videos are licensed and which are not, it's ridiculous to think that YouTube should just magically know which ones are which. Record label Interscope was trying to get people to buy CDs by offering you a copy of Tweetdeck software "for free!" if you bought a CD. Except, of course, Tweetdeck has always been free. The MPAA ratings people gave "It's Complicated" an R rating for showing movie watchers that pot can make you giggle. Nina Paley made a key point in noting that the problem has never been middlemen, but monopolies.

One court totally overreacted and ordered an entire website taken down because of some defamatory comments on them, while another court correctly rejected a lawsuit against a consumer complaint site (ConsumerAffairs) properly noting that Section 230 protected the site from liability over actions of its users. Meanwhile, the Canadian government sought to take down a parody site by the Yes Men, and it resulted in the ISP actually taking down 4,500 sites. Censorship at its finest.

We wrote about how automakers were abusing copyright law to force you to pay more for repairs. FCC boss Julius Genachowski's Facebook account spammed all his friends with a "make money now!" offer. And a court tossed out a silly class action lawsuit against Apple from people who said the iPod resulted in hearing loss.

Finally, we're only looking back five years here, but five years ago we wrote about how the blog MusicAlly was looking back at the major labels' "online strategies" from 2001. They weren't pretty, though the strategies were fairly amusing -- mostly focusing on proprietary formats and DRM. As we noted at the time, all of the strategies were focused on trying to recreate the old retail world where scarcity ruled. That's a really dumb strategy in an age of digital abundance.

Ten Years Ago:

It was (not surprisingly) a bit of a slow week. Minnesota kept trying to tax VoIP companies despite FCC rules saying that VoIP shouldn't be taxed like regular phone lines. Verizon's anti-spam system went haywire and just started blocking all foreign emails (that's one strategy...). Some music labels were apparently experimenting with sneaking spyware into media files (a bit of foreshadowing for the Sony rootkit scandal, which went public the following year).

Our final post of 1999 pointed out that the Y2K bug scare didn't actually result in that much business. Some had been predicting that "fixing" the Y2K bug would be a boost to some tech companies' bottom lines. Wired Magazine, which had bizarrely sold off its entire digital arm, including the wired.com domain name was trying to buy it back -- a deal that wouldn't actually be completed until 2006. ABC was getting (rightfully so) nervous about dot com bubble startups buying Superbowl Ads, asking those companies to pay cash up front. And just to show you how different things were in 1999, people were excited about the fact that DVDs were catching on, after some had expressed skepticism that they'd find a real market. Things have changed....

Thirty One Years Ago

AT&T was broken up as a monopoly by the US government. And, today, it's almost all the way back to a monopoly. Watch that pendulum swing...

China took unending Hollywood-funded pressure to ramp up its efforts to stop copyright infringement... and used it as an excuse to censor more of the stuff on the internet that the Chinese government didn't like. Meanwhile, a German court decided that TV schedule information was covered by copyright. Demi Moore's lawyers thought that it was defamation to suggest that her images had been photoshopped. And the NBA was fining players for happily tweeting about victories too soon after the game was done.

There are two other interesting stories, just because nearly identical issues have cropped up this week, five years later. First, we had a discussion on whether or not sites should be forced to take down content if a court rules against the user -- if the user can't be found or is unable to do anything about the content. The sites are protected by Section 230 and don't need to do anything -- but some are suggesting otherwise. In fact, a judge in NY was suggesting that a Right To Be Forgotten might be a good remedy in this situation. The second was a story out of Chicago, done by the Chicago Tribune, noting that red light cameras seemed to be leading to more accidents. We've been reporting on this exact thing for many, many years, but this past week the very same Chicago Tribune reported on the very same issue again after doing a more detailed look at the numbers. Turns out its story from five years ago still held true: red light cameras increase crashes.

Ten Years Ago:

Do you remember when Cablevision thought that it was going to get into the satellite TV game and compete with DirecTV and Dish? It was called Voom and it failed miserably. Blockbuster (remember that company?) was realizing that Netflix was real competition. During this holiday season -- but years before smartphones were really a thing -- we were discussing the issue of bringing your email on vacation.

Despite all the fears about kids learning "texting speak," studies were showing that kids can understand the context and know they have to write differently in formal settings rather than sending a text to a friend. And yet some people still don't believe this. Trust me: kids are smarter than you think. Finally, we were learning about more and more documentaries that could never be shown again, because original licenses for archival footage and/or music wouldn't allow them to ever be shown again.

Fifteen years ago, there were some early attempts to monitor driving traffic by looking at mobile phone data. The idea seemed perplexing to us -- and we wondered about the privacy implications. Of course, fifteen years later, we're all tracked everywhere we go... but we have pretty decent information about the traffic when we're driving. Finally, in those early days on the web, you could still put up fake job listings and convince people they were interviewing for a job at CBS.

Thirty Two Years Ago

Time Magazine named "the personal computer" as its "Person of the Year" -- the first time it went to a non person.

ESPN suspended Bill Simmons (from Twitter) for calling someone deceitful. Huh. That sounds familiar. ACS:Law, which was the UK version of Prenda before Prenda existed was just ramping up. Spam King Alan Ralsky was sent to jail. Microsoft was trying to shut someone up after they revealed some "flaws" in Microsoft's plan to bribe users to use Bing instead of Google. Speaking of Bing, Rupert Murdoch was toying with the idea of taking News Corp. sites out of Google's search results if Microsoft paid him enough. And Hulu was furious that people were actually embedding its videos, despite the fact that Hulu provided tools to embed.

We looked at how Hollywood was really at fault for a significant part of movie piracy, by not giving users what they wanted. Similarly, we looked at how the recording industry spent so much on payola to get people to hear their music for free -- and yet were so angry about piracy, which got people to hear their music for free. Speaking of Hollywood, the heads of the big studios had pretty much all settled on a new talking point: that they were really concerned about the independent filmmaker, rather than big studios when ti came to piracy. Of course, more indie films were being made than ever before, and those indie filmmakers now have many more ways to get supported than ever before, so that rang pretty hollow. And, a record label exec was arrested for not using Twitter to ask Justin Bieber fans to disperse.

We were celebrating Wil Wheaton saying people should "get excited and make things" rather than griping about how business models and such were changing online. Meanwhile, we highlighted some research about how copying and imitation are actually quite good for society, even if people think they're bad.

Ten Years Ago:

We were talking about how there were over 400 companies selling "VoIP" offerings, and wondering how they could possibly survive (spoilers: they didn't). The first case we'd heard of where scammers were trying to sneak malware through banner ads on popular sites. Unfortunately, this remains an issue today. People were starting to realize that stores like Best Buy were really showrooms for Amazon. And a court told the MPAA that it couldn't lump a bunch of unrelated file sharing lawsuits into the same case.

Also, ten years ago, Perfect 10 sued Google for showing thumbnails of some of its porn images hosted on other sites. That case would result in one of Perfect 10's many courtroom losses, and also set a good precedent concerning fair use. Also, ten years ago Congress started pushing for a new job in the White House, the IP Enforcement Coordinator -- a role they finally pushed through as part of the ProIP Act in 2008 (with the job coming into existence in 2009).

Fifteen Years Ago:

Ah, such a quaint time. We were excited about the possibility of paying bills online (seriously). This was the era of the "free ISP," though the catch was that if you used them, you had to deal with ads from them. So we found it interesting that a new one was launching, and its main selling point was that it was a free ISP with no ads. Instead, they hoped you'd buy stuff from their e-commerce store. Media merger potential is always in the news, so fifteen years ago, Time Warner as looking to buy NBC. Oh, and remember when AOL was so powerful that it could be evil without consequence? In order to ramp up its business of spamming its own users, AOL claimed that all of the opt-outs from spam had "expired" and users had to re-opt-out to avoid being spammed by AOL partners in the future. How nice. No wonder people started leaving in droves soon after.

Forty two years ago:

Atari released Pong, the first "commercially successful video game" kicking off the start of the video game revolution. Two years ago, on the 40th anniversary, Buzzfeed published an astoundingly wonderful history of Atari and Pong. Go read it.

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]]>looking-backhttps://www.techdirt.com/comment_rss.php?sid=20141127/06171029265Fri, 21 Nov 2014 18:27:45 PSTSenators Hoping To Keep CIA From Destroying Most Of Its Employees' EmailsTim Cushinghttps://www.techdirt.com/articles/20141120/09000229206/senators-hoping-to-keep-cia-destroying-most-its-employees-emails.shtml
https://www.techdirt.com/articles/20141120/09000229206/senators-hoping-to-keep-cia-destroying-most-its-employees-emails.shtml
The CIA and Senate have found more to fight about. With the "Torture Report" mostly in the hands of the White House at this point, the two are now battling over the CIA's planned alterations to its email retention policies.

Key senators are pushing back against a CIA plan to destroy older emails of “non-senior” agency officials.

The heads of the Senate Intelligence Committee on Wednesday sent a letter opposing the proposal, under which only the highest ranking CIA workers would have their email correspondence permanently saved.

The plan “could allow the destruction of crucial documentary evidence regarding the CIA’s activities that is essential for Congress, the public and the courts to know,” Chairwoman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) wrote to the National Archives...

The senators are asking the National Archives to step up and somehow prevent this from happening -- most likely by declaring "non-senior" emails to be retainable records that must be turned over rather than destroyed. The CIA would prefer to destroy the emails of all but the top 22 employees three years after they leave, or when "no longer needed, whichever is sooner." Unfortunately for the senators making this request, the National Archive has already signaled its agreement with the CIA's proposed retention schedule changes.

In tentatively approving the request, the National Archives noted that the emailed information “is unlikely” to exist in other forms that will be marked for permanent storage.

Any information not found in those other files likely “has little or no research value,” it added.

Senators Feinstein and Chambliss -- in rare agreement with transparency and government accountability activists -- disagree with the National Archives' assessment.

“In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA,” Feinstein and Chambliss wrote.

Longer retention is needed, especially for an agency as secretive as the CIA. The standard wait period for sensitive document declassification is 25 years. Correspondence related to declassified documents will be long gone by that point.

Even in terms of normal FOIA requests, three years is cutting things close. Rarely does an FOIA-worthy event come to light within days or weeks of its occurrence. It's generally weeks, months or years down the road. By the time documents are requested, ignored by the CIA's FOIA staff and finally pried free by a federal lawsuit*, responsive documents may already have been destroyed. Without a doubt, the CIA knows this is a distinct possibility and any trimming of retention periods only makes it more likely that relevant communications will be permanently removed from circulation.

*YMMV

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]]>agency-replacing-'delete'-buttons-faster-than-everhttps://www.techdirt.com/comment_rss.php?sid=20141120/09000229206Thu, 20 Nov 2014 15:49:51 PSTSmall Change To National Archivist's Powers May Keep Government Agencies From Destroying Embarrassing DocumentsTim Cushinghttps://www.techdirt.com/articles/20141114/15075329149/small-change-to-national-archivists-powers-may-keep-government-agencies-destroying-embarrassing-documents.shtml
https://www.techdirt.com/articles/20141114/15075329149/small-change-to-national-archivists-powers-may-keep-government-agencies-destroying-embarrassing-documents.shtml
There may be some better news on the way for those of us who like free-as-in-FOIA information and an accountable government. Professor and attorney Douglas Cox points out that an amendment to the statutes governing the National Archive may give that agency the power to keep records of public interest from being deleted, destroyed or otherwise hidden.

Having passed every step but presidential approval, H.R. 1233 (Presidential and Federal Records Act Amendments of 2014) [pdf link], makes the following small, but important, change to the Archivist's powers and duties. Here's the portion Cox highlights at Document Exploitation:

DETERMINATION OF DEFINITION.—The Archivist’s determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies.

As Cox explains, this single paragraph allows the Archivist to determine what is or isn't a record -- something that must be retained -- and makes it binding across all federal agencies. If that passes, government agencies will no longer be able to exploit the law to bury embarrassing or incriminating documents.

[T]his authority allows the Archivist to close up - or at least tighten up considerably - the horrible loophole in the law that has been manipulated in a long line of cases of government document destruction or alienation.

Cox goes on to note that this isn't a theoretical harm. It's something that has happened time and time again over the past several years.

[F]rom the State Department's indefensible decision to allow Henry Kissinger to remove (and treat as his personal property) the transcripts of his official telephone calls as the Secretary of State all the way up to the CIA's destruction of the interrogation tapes. This is the same loophole that could legitimately endanger the long-term survival of the CIA's "Panetta Review" and necessitated the actions of the SSCI staff in exfiltrating a copy from the CIA to a Senate vault (as I described at length here - it is not a conspiracy theory), which is further complicated now by fears that new leadership at the SSCI will return the Panetta Review to the exclusive custody of the CIA.

The loophole isn't in the "record" language. That's still very broadly defined and (unfortunately) rather malleable. The loophole is which records are "appropriate for preservation," something that has been left up to each agency to determine. And "determine" they did, right up to the point that DC circuit court judges pointed out that government agencies have a "built-in incentive" to destroy records related to "mistakes."

Cox notes that while this amendment is promising, it doesn't fix everything -- especially some records-related circular reasoning that has made its way into the definition of "records" with the assistance of the National Archives and Records Association itself. But it is a step forward.

To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.

Cox recommends the first action it should take with its new powers (should the President sign it into law) is ensure the Panetta Review is designated a permanent federal record to keep the CIA from performing any extra "editing."

In other news, Glenn Beck was not allowed to seize the domain name GlennBeckRapedAndMurderedAYoungGirlIn1990.com, despite his attempts. Venezuela was blaming video games for violence. A court said that using a domain registration privacy service was "material falsification and David Brooks claimed that mobile phones were destroying courtship (I wonder what he thinks of Tinder).

A court ruled that Microsoft was a monopoly while Webvan -- one of the classic dot com bubble startups -- had its IPO right at the height of the bubble era, just as competitor, HomeGrocer raised $100 million. Another classic of the bubble era was the online pet store category. While Pets.com was the most famous there were half a dozen or so competitors. One of them, Petopia, raised $66 million before launching and claimed its "differentiating factor" was it had more money than everyone else. And then, fifteen years ago this week two other online pet stores raised much more money, each breaking $100 million for unproven businesses in a highly competitive market. Think about that when people claim we're in a bubble today. Over in Europe, some folks were trying to copy Silicon Valley's bubble with the infamous boo.com -- and it wasn't going well (for the investors, at least).

Back in 1999, Microsoft was already looking at ebooks while Barnes & Noble bought books.com, which had been an attempt to take on Amazon by Cendant (which, at one time, had been considered an up-and-coming internet company) as well as a big stake in a publishing on demand company.

Fifteen years ago was also the week when we got one of the first absolute nutty web-meme/internet celebrities with the rise of Mahir, the "I Kiss You!!!" guy. His original web page has been moved, but you can see it here, and for you young kids who missed the Mahir phenomenon, you may immediately notice the resemblance to the later Sascha Baron Cohen character Borat -- something that apparently angered Mahir.

Twenty Six Years Ago:

The infamous Morris worm was unleashed on the internet, by Robert Morris -- who was just trying to measure the internet. Instead, it ended up taking down much of the internet, and Morris has the unfortunate claim to fame of being the first person convicted under the Computer Fraud and Abuse Act (CFAA). This represented the first of many abuses of the CFAA law, which still is in desperate need of fixing, and which Congress still refuses to fix. On a somewhat related note, years later, Morris went on to cofound YCombinator. Also, in the very first YCombinator class, one of the entrepreneurs was Aaron Swartz, who (as you well know) went on to kill himself while facing criminal charges under the CFAA for downloading too many journal articles from a website he had legal access to. Today would have been Aaron Swartz's 28th birthday (yes, he was born two years to the day before the Morris worm), and there are a bunch of hackathons in his honor going on.

It seems like there were a lot of shifting opinions this week in 2009. Media analysts began to realize that charging for online news was almost surely a losing proposition; Gartner was finally realizing that social networking at work isn't so bad; despite an anti-piracy "education" campaign, people in Sweden were becoming less and less concerned about file sharing — and, indeed, talk about the "death of file sharing" at the time was clearly exaggerated, while several musicians were beginning to realize that it's not as evil as they thought. And Europeans were being a bit confusing, supporting the idea of digitizing books as long as Google wasn't the one in charge.

It's a shame that so many links from 1999 are now broken. Fifteen years ago, we pointed to an article by Tim Berners-Lee on the future of the web — but sadly, the link now just puts you on the MSNBC home page. I haven't been able to track down the exact article, but I suspect it was related to his book Weaving The Web, released the same year.

Two years ago, Encyclopaedia Britannica stopped publishing in print — but back in 1999 it had just launched its website, only to see it knocked out by high traffic. Technical difficulties also plagued the online chess match between Kasparov and the world.

Amazon's one-click purchase patent is among the most infamous "bad web patents", and this week in 1999 the company sued Barnes & Noble over it. A less high-profile web battle also broke out, with funeral directors fighting against online casket sellers. And a bunch of software companies discovered that nobody cared about their No Piracy Day.

1999 was a post-Playstation world, and a new big console war was brewing. At the time, the X-Box was a "mysterious" tease, the GameCube was still codenamed "Dolphin", the PS2 was gearing up for release in Japan, and the Sega Dreamcast was still considered a serious contender.

153 Years Ago

October 21st, 1861 was a landmark day in the history of telecommunication: the First Transcontinental Telegraph was completed, connecting the small existing networks on the east and west coasts, and ushering out the Pony Express (which shut down two days later). The overland line would play a major role in America for the next eight years before being replaced by a new set of lines running along the Transcontinental Railroad route.

We were still wondering about the attempts to insert the morality question into copyright, noting that it is almost always used to "cover up the inability to justify the expansion of rights on economic grounds." In a somewhat related post, we wondered what kind of industry sets up a group to specifically oppose what consumers want -- and the answer was: Hollywood. Another such group is the BSA, and it was finally having some of its nastier practices revealed. Sticking to the copyright question, we wondered if libraries really needed licenses to lend out ebooks, since they don't need permission to lend out regular books. ASCAP had a judge disabuse it of the notion that a ringtone is a public performance while a guy who uploaded his own book to Google and clicked the wrong button (making it available) then sued Google for infringement.

The Associated Press and News Corp. were demanding money from Google (of course) along with other "aggregators" though, News Corp. apparently forgot it had its own aggregators who didn't appear to pay up any money at all. Oops. NY's Department of Labor reduced the unemployment benefits of an unemployed blogger because he put AdSense on his blog (making around $1/day), claiming that it was unrevealed employment.

John Ashcroft's Justice Department was eager to be Hollywood's private police force. But, in an important decision, the Supreme Court decided not to review an important ruling that said the RIAA couldn't demand names from ISPs without first filing a lawsuit (copyright trolls keep "rediscovering" this supposed "loophole" without checking out the case law on it). Starbucks thought it was going to get into the music business while Amazon thought it was going to rent DVDs (a la Netflix). Google also released its desktop search offering, which never took off.

Remember the OQO modular computer system? Probably not. It was insanely hyped varporware that people were talking about for years, but then it finally came out ten years ago and was overpriced and not very impressive. Applied Digital, a company famous for overstating claims about its "implantable" VeriChip was up to its usual games. Diebold e-voting machines had their usual problems. The FCC was in the process of killing off line sharing and people were realizing that all the doom and gloom predictions about how the phone "do not call" list would kill the economy were not even close to true.

On the patent front, noted patent maximalist Priceline was suing Microsoft for patent infringement, while Visa had to settle a lawsuit with a woman who gambled away $70,000 online and blamed Visas for not stopping her. While it obviously didn't apply to that woman, studies were showing that people were still afraid to use credit cards online.

Oh yeah. Also, 15 years ago this week, we wrote a short post about how people kept stealing other people's AOL passwords to break into their accounts. The story itself isn't noteworthy. But for the next fifteen years -- yes, right up until now -- idiotic people doing searches on "how to steal AOL passwords" somehow ended up on that page and would post details of the accounts whose passwords they wanted.

Twenty Years Ago:

We weren't yet publishing, but the first Netscape Navigator was released, sparking part of the revolution that led us to start Techdirt just a few years later. I still remember when Netscape came out. I had been a loyal user of the Mosaic browser, and so I rushed to download Netscape. But, since I had a pokey 2400 baud dialup modem in my dorm room at college, I had to make sure my roommate was okay with me leaving the phone line tied up all night to download the "massive" Netscape file (which I think was a massive 4 megs). If I remember correctly, the phone hung up in the middle of the first night and I had to wait until the next night to get the whole file down.

Finally, five years ago this week, we wrote a fairly short post about the FBI going way overboard in their investigation of a programmer. At the time, we had no idea that Aaron Swartz's story would continue, nor did we know how tragically it would end. We didn't even use his known-in-some-circles-but-not-yet-famous name in the headline — an odd thing to see now. It's moments of contrast and reflection like this, I think, that are the true value of these Techdirt History posts, and I hope you all agree.

Ten Years Ago

Last week, we noted that SpaceShipOne had completed its first of two flights. This week, it completed the second and officially won the X-Prize. For the rest of the world, this week was a mix of tech-optimism and tech-panic.

Oh, and long before PRISM, there was Echelon. Remember Echelon? This week in 1999, some folks were trying to figure out how to gag it.

One-Hundred And Forty-Six Years Ago

Long-time fans of the site surely know that Mike Masnick's alma mater is Cornell University. Well, this week in 1868 marks its inauguration and subsequent enrollment of 412 students, the highest of any American university up to that time.

We sort of foreshadowed this last week, but five years ago this week, we had our little dust-up with singer Lily Allen -- something I still can't quite understand. It started with Lily posting a bit of a rant against file sharing, which we felt was a bit misguided. Then, Lily decided to double down and set up an entire blog entitled "It's Not Alright" in which she apparently planned to discuss how copying and file sharing was simply "not alright." Except... her very first post happened to be her copying an entire Techdirt article (without credit or a link). The copied article was about 50 Cent's more enlightened view on copyright. Lily reposted our entire article and then slammed 50 Cent. We noted that we have no problem with anyone copying our articles, but it sure seemed strange for Ms. Allen to create an entire blog post about how "it's not alright" to copy, and then copied our entire article (again, without credit).

Allen then updated her website with an semi-apology to me, while still insisting that she thought it was "quite obvious" that she "wasn't trying to pass off those words" as her own. Of course, that wasn't the concern. Very little copyright infringement is about plagiarism (which is about passing off someone else's words as your own). Our point was merely that perhaps her views on copying being "not alright" weren't entirely well thought out when she, herself, clearly copied our words without a thought. But then it got stranger. That's because someone alerted us to the fact that part of the way Lily became famous was distributing mixtapes, which mixed in her music with lots of other famous recording artists. Now, lots of musicians do this. It's considered pretty common these days, but it doesn't make it any less infringing. Even more bizarre was that these mixtapes were being distributed off of Allen's official website, which had a big copyright notice on it, courtesy of her label, EMI. So, for someone speaking out about how it was "not alright" to copy others, she sure didn't seem to take heed of that herself.

Lily responded by "answering some questions," but it really just repeated her claims about it's "not alright." She didn't address the hypocritical nature of her own copying (and distributing) of others' works. She also insisted that music couldn't be free. We asked her some questions that we hoped she'd actually answer, including about her own use of free, while slamming the concept of free. Following this, she put up a big blog post that tried to respond to my questions, but which we felt missed the mark. Her post was only up for a few hours, and as I was writing about it, she not only took the post down, but the whole blog down, never to return. The next day she showed up at an event, and suddenly people were claiming that there were horrible attacks online against her leading some people to accuse me of attacking her for merely pointing out inconsistencies in her statements and actions (a recording industry lawyer insisted that I lead "my army" of internet "hackers" to attack her -- which is all sorts of hilarious). A few days later, she claimed she was quitting music altogether, something that almost no one believed to be true, and which wasn't true. She did, eventually, release more music, including a song attacking internet trolls. It was quite a week.

It wasn't all Lily Allen that week. This was also the week that a bank screwed up and sent confidential info to someone's Gmail account, leading a judge to order Google to kill the entire account -- a reaction that seemed a bit on the extreme side. Meanwhile, Mark Helprin, who wrote a book about how awful the internet was (spending way too much time dissecting anonymous Techdirt comments), blamed the plethora of bad reviews of the book on the fact that publishers asked the people he insulted (all of us internet shut ins, of course) to review the book (or, maybe, the book just sucked). Meanwhile, an author in New Zealand claimed that libraries were engaging in grand theft by loaning books.

CAFC was being CAFC and said that you could patent medical diagnostics in the Mayo Clinic case, setting up an epic smackdown from the Supreme Court that set the framework for future epic smackdowns, including the most recent in the Alice ruling. Texas Instruments was angry at calculator hackers and some ridiculous Canadian professor tried to insist that an injunction that would stop the sale of Microsoft Word due to a questionable patent infringement claim would be good for society because patents patents patents. Speaking of patents and craziness, a ridiculous SLAPP suit against Rick Frenkel, who had blogged anonymously as the "patent troll tracker" was set to begin, though it settled quickly (after all, the goal was really just to out Frenkel).

Judge Baer tossed out part of the Uruguay Round Agreements Act that said selling bootlegs was copyright infringement, saying it basically granted perpetual copyright. Unfortunately, the appeals court overruled him later. Patents were in the news: patents were piling up in search and in WiFi, foreshadowing some patent troll fights to come. Someone claimed that merely offering internet access in public spaces was patented. Netflix was taking tentative steps towards offering downloadable movies while people were already suggesting that the price of music downloads needed to drop.

The 9/11 Commission Report was both public domain and available totally free -- and yet was a massive best seller. And yet some people still insist that you can't make money off of free or without copyright? A UK newspaper felt that if it pulled some of it content off the web that would make more people buy the paper edition (wonder how that worked out). Meanwhile, electronic voting machines continued to mysteriously lose votes.

Sir Francis Drake finished his circumnavigation of the globe, the second trip to do so. Of course, since Drake is widely considered to be a pirate, I'd have to say this marks the first ever "global pirate scourge."

A Canadian appeals court let common sense prevail and said that merely linking to a website was not defamatory. Over in the UK libel laws were still out of control, creating real chilling effects for criticism. Meanwhile, Oregon wanted to sue a guy who posted the state's own guide to using public laws because, apparently, the state prefers the public to be ignorant of the law (easier to lock 'em up that way). Meanwhile, a sheriff used Craigslist to arrest some prostitutes, and rather than realizing how the tool helped him do the job, he blamed Craigslist for the prostitutes being so easy to arrest.

The legacy entertainment industry was pushing its bogus propaganda on school children, and even more ridiculous, part of the program was trying to create propaganda that could then be distributed to local newspapers and TV stations to distribute the propaganda. On the flip side, some were pointing out that privacy rights and copyright often come into conflict, even though few people really consider that fact. ASCAP and BMI were demanding money for the 30 second previews that online music stores were selling, because of course they'd demand that. And up in Canada, the industry wanted a new tax on the iPod because of course they'd want that. A newspaper exec was claiming that search engines "break into our homes"... by driving more traffic to their websites. Some things never change.

Things started to get heated with musicians disagreeing about how to deal with the internet. A group of musicians spoke out strongly against blaming fans and kicking them off the internet for file sharing. In response, another group of musicians attacked that first group of musicians, calling them "unhelpful" and "destructive" for daring to suggest that maybe attacking fans isn't a good idea. 50 Cent came out and pointed out that piracy is just a part of the marketing, leading Lily Allen to go on a bit of a rant about how evil piracy was and how the internet is destroying the music industry and all that. If you've been reading Techdirt for a while, you may recall what happened next, but we'll save that for next week... Meanwhile, a new research paper was showing best practices in online music offerings -- and it didn't include Lily Allen.

Ten Years Ago

We were, of course, discussing new business models for the music industry -- with the main one being patronage (a model that has become increasingly popular these days). Guess what? We were also discussing net neutrality a decade ago, because this is the debate that will never end. Microsoft software was shutting down air traffic in California, because what's air traffic control without some blue screens of death? AT&T was engaged in price gouging during a Florida hurricane, because it's AT&T.

This was a big one. Fifteen years ago this week the White House finally eased off its restrictions against exporting encryption, a move that was vital to increasing internet security. Speaking of internet security, we were already dealing with FUD around cybersecurity as there were reports of Russian hackers breaking into the Defense Department. Also Hotmail had a security breach, because it's Hotmail. And Network Solutions, which still controlled all domain names, revealed everyone's passwords. Oh, and if you were really afraid of the upcoming Y2K threat, you could rent a self-sufficient mansion in the South Pacific for a few months on either side of Y2K.

In the music world, Sony Music was acting like a typical major record label in telling bands that they had to give up lifetime rights to any URL that had the band's name in it. Way to internet, Sony Music. A reporter at Fortune couldn't find an MP3 and declared the whole concept of downloadable music over (Fortune reporters weren't exactly fortune tellers). We were already discussing the end of software in the age of the internet. Oh yeah, and remember when AOL was the big internet company everyone feared? 15 years ago, eBay gave AOL $75 million just so that it wouldn't start its own auction site.

One Hundred And Twenty One Years Ago:

On September 20th of 1893, Charles Duryea road-tested the first ever gasoline-powered automobile. Today, of course, it seems like we're finally trying to move past gasoline-powered cars.

Patents, patents and more patents were in the news. It was getting so crazy that even Dilbert was trying to tackle the issue. IBM was trying to convince the world that patent protection was the key to open source software (ha ha). Intel founder Andy Grove was promoting a use it or lose it provision for patents, while Ben Goldacre was highlighting how much harm pharma patents had done. And because who doesn't love a story about an absolutely ridiculous patent, we had one about someone claiming to have patented adding a .com to the end of an address bar (the company was demanding millions from every browser maker).

On the copyright front, we were looking at how performance rights groups like ASCAP helped funnel money from smaller artists to big artists. Hollywood was out there trying to kill another innovation as it took on the nefarious Redbox. The UK government took a study with just 136 individuals (who all self-reported) and used it to conclude there were 7 million illegal file sharers in the UK. The recording industry in Japan was trying to get the Japanese government to break your phone if you listened to unauthorized music. And the geniuses at Forrester were telling the music industry to copy the movie industry's awful "windowing" technique and release music in different formats in different stages (a recipe guaranteed to increase piracy rates).

Finally, Glenn Beck might not have raped and murdered a girl in 1990, but he sure wanted to do everything possible to stop people from asking if he had. On the flip side, filmmaker/story teller/cool guy Kevin Smith was still awesome about the internet and questions concerning copyright (speaking of Smith, if you haven't followed the story of how he ended up making his latest movie, Tusk, you've missed out on one great story about connecting with fans). Oh, and we went way, way, way back to 1773 to look at an important legal decision detailing why copyright is not property.

Ten Years Ago

Two rather important legal cases were decided this week ten years ago -- one good, one bad. First, the hugely important ruling in CDT v. Pappert, which dumped a bad law in Pennsylvania that required ISPs to filter out porn. The second was the Bridgeport v. Dimension Films appeal, which we were just talking about yesterday, in which a court ruled "get a license or do not sample" and further claimed of such a requirement "we do not see this as stifling creativity in any way." Perhaps because the appeals court judges weren't even remotely creative themselves.

In a weird bit of worlds colliding, the RIAA got sued for patent infringement by Altnet, the quite odd patent trolling/adware company that tried to make a "business" out of file sharing. It claimed that the RIAA's hashing technique for identifying songs being shared violated its patent. Meanwhile, DVR makers TiVo and Replay each agreed to make their products suck a little more by adding some DRM to appease an angry Hollywood. Congress, at the RIAA's request, was trying to make it a criminal offense if you shared 1,000 or more works. A Japanese newspaper was mad at Google News for "infringing" on its headlines (or so the newspaper claimed).

Finally, in a bit of perceptiveness, ten years ago we wondered whether there would be distributed backup services in the future (yup), whether the concept of area codes would matter any more thanks to mobile phones and VoIP (not so much), and we wrote about people speculating how five innovative companies in 2004 would be able to survive a bunch of new competitors in the space. The list of companies? Netflix, TiVo, PalmSource, RIM and Vonage. While most of them are still around in one form or another, I think the only one people can safely say really maintained its innovative dominance has to be Netflix. The world changes quickly in technology.

The "free internet access" boom was in full swing with WorldSpy jumping into the space with a big differentiator. Unlike all its competitors, it wouldn't bombard you with ads. It just hoped that you'd be so happy with the free internet access, you'd go to its website and buy stuff. Don't think that ended up working out so well. And, yes, fifteen years ago, people were still writing idiotic articles saying that open source was "communism."

Fifty-Eight Years Ago:

We weren't publishing yet, but IBM shipped the first IBM 305 RAMAC, the first computer with a moving-head hard disk. You could lease one for just $3,200 a month (in 1957 dollars!)

This week in 2009 we (along with the rest of the web) had a lot of posts about newspapers. We asked how they could claim to be serving the public while shutting that public out with paywalls; we noted that comparing the dollar value of print and digital readers was missing the point; and we called out CNN for ripping off the reporting of others while crowing about "parasitic aggregators." We watched as news organizations fought with sports leagues over various fees for access and reporting, and mused about the possibility of sports betting as a revenue stream for US newspapers. But as the newspapers continued to call for antitrust exemptions that would allow them to put up standardized paywalls, we said fine, let them collude. See how that works out.

The internet, as we all know, is rife with journalistic hoaxes — but such hoaxes are much older than that. One famous example comes from this week in 1835, when The Sun in New York published an elaborate series of fictional articles about the discovery of life and civilization on the moon, all falsely attributed to a notable astronomer of the day. The whole thing was both a publicity stunt to boost circulation and a sincere piece of satire targeting the wild astronomical theories being tossed around in the media at the time. Known now as The Great Moon Hoax, it also may have inspired some of Edgar Allen Poe's famous forays into proto-science-fiction.

We were wondering if it would ever be possible to implement an evidence-based approach to copyright law, rather than a faith-based approach, as there is today. It especially didn't seem likely when a top UK politician was wined and dined by entertainment industry's one week, only to propose criminalizing file sharing the next. We were also looking way, way back to the 6th Century for what was arguably the first copyright trial involving Colmcille, who might be described as the very first "book pirate." It involved arguments about whether or not one could own the words in a book and whether or not harm was done in copying it. In more modern times, we were discussing how the courts were trying to figure how to divvy up Superman's copyrights after a big copyright termination fight.

Meanwhile, we couldn't understand why everyone was so up in arms about literary homage in which someone wrote a "sequel" to classic works and wondered if it was even possible for their to be a fair trial around file sharing when so much of the language around it was inherently biased.

In the world of intellectual property abuse, Reddit was being pressured to censor news of a simple URL hack on the Sears.com website that suggested it sold grills for cooking babies, research giant Gartner was telling reporters they couldn't mention its research without permission, and book publishers were jacking up the price of ebooks, because they could. On the patent front, trolls were swooping in to patent anything and everything related to "clean tech" so they'd later be able to demand payment from the companies who did the actual work.

Finally, over in the UK, the IFPI was insisting that the Pirate Part shouldn't even be allowed to express doubts about copyright law.

Ten Years Ago:

Ten years ago this week Google went public and the long national nightmare of the bursting of the original dot com bubble was officially considered closed. Meanwhile in the big Grokster v. MGM case, Grokster won at the appeals court, agreeing with the district court that, like the Betamax, a file sharing app was just a tool, and shouldn't be blamed for infringement done by users. Unfortunately, the Supreme Court later reversed that decision by making up (out of thin air) the idea of an "inducement" standard for copyright law. Speaking of inducement, Congress was having trouble passing a law to make "inducement" a violation of copyright law (you'd think the Supreme Court would have noticed this...) and proponents of the law had handed it off to the copyright maximalists at the Copyright Office to see if they could come up with a "compromise." That compromise never came, and Congress refused to make inducing copyright infringement a form of infringement. The Supreme Court then ignored Congress and created the inducement standard by itself soon after.

One of my absolute favorite stories of the absolute insanity that was the dot com boom/bubble was when fish oil company Zapata, which was founded by George H.W. Bush, tried to totally reposition itself as an internet company known as Zap.com. The company just seemed to believe if it bought up enough early websites it could become a dot com giant of its own. 15 years ago this week, it announced plans to buy Echo, then a well known NY-based online community. Meanwhile, it appears fifteen years ago was also the first time we wrote about Elon Musk, except we were so confused we called him Elton. Sorry about that, Elton.

Fifteen years ago, we were already concerned about the rise of business method patents. We were also a bit surprised to see AT&T sue Intel over an unpaid $5,000 phone bill.

None of us were alive, but William Seward Burroughs received a patent on what was considered to be the first working "adding machine," kicking off some of what would eventually become the computer revolution. Burroughs had formed the American Arithmometer Company, which later became Burroughs Adding Machine Company, and then just Burroughs Corporation... before eventually merging with Sperry to form Unisys. Burroughs, of course, was also the grandfather of another William S. Burroughs, known for being one of the most well known beat generation writers... who named one collection of his essays The Adding Machine.

An entertainment industry lawyer (who now works for the MPAA) tried to make the ridiculous argument that people disliked the RIAA because they hated the music business. We argued, in response, that it seemed a lot more likely that people hate the RIAA because of its actions, which included ripping off musicians and suing fans. But, you know, everyone's got opinions. And, of course, the fact that the RIAA was getting million dollar plus awards against people sharing two dozen songs really endeared them to the public as well. Speaking of which, the DOJ went on record saying that awards of $80,000 per song for sharing a song didn't seem all that oppressive or unconstitutional. We also had a story about how the Premier League's fear of the internet was a perfect case study in what not to do. Five years later and it's clear that the Premier League has learned... absolutely nothing.

There was some bad news on the copyright vs. innovation front as copyright was winning out. In a critical case, an appeals court overturned a lower court ruling and declared that a DVD jukebox backup system infringed on copyrights by breaking DVD DRM. This was the same week that a judge issued an injunction against another DVD copying product, RealDVD.

On the flip side, we had a story about copyright scholar William Patry pointing out the obvious: it's not copyright that creates value, but people's willingness to pay for something. This was also the introduction of Tom Bell's wonderful Mickey Mouse Curve for copyright, which continues to show up in various debates on copyright terms. There was also a really good fair use ruling, involving a book of monster movie posters, with a court ruling that the use of the posters was fair use, even though it used the entire post images and the work was a commercial effort. That ruling remains a key one for fair use based on the work being "transformative."

Guess what? The FCC was ignoring the public again. It had set up a bunch of "workshops" to discuss its national broadband plan, but nearly all of the speakers were associated with... big broadband players. Because, of course.

There were also a series of... just wacky things happening this week five years ago: Insurance company ICBC sued a website, saying it was infringing by telling people how to avoid having their claims denied. RSA threatened a guy with trademark infringement for daring to point out that the Navy Federal Credit Union website let people login from an unsecured page. RSA insisted that it was trademark infringement to claim the page wasn't secure. Yikes. On the trademark front, we had Walmart trying to abuse trademark law to shut down a union website. Big pharmaceutical companies were abusing patent law to seize and destroy legitimate generic drugs while in transit. And a very angry patent-loving guy in Oregon, nicknamed the Patent Hawk (who stops by here on occasion to hurl insults) tried to file an amicus brief in a key Supreme Court case on software patents. For reasons that still don't make sense, he filed the brief claiming it was on behalf of the entire state of Oregon, leading state officials to say they had no idea who he was and certainly didn't authorize such a brief. Meanwhile, Encyclopedia Britannica tried to abuse some patents it had covering GPS functionality, but failed (thankfully).

Ending on some good news: a court in New Hampshire said that demanding a settlement after filing a bogus lawsuit was a form of extortion. It's too bad more courts don't agree just yet. And... it's been five years since RECAP launched, saving us all a bunch of money on PACER, the electronic court docketing system -- a system that still should be free.

A decade ago, we wrote about a good explanation for how innovation and intellectual property didn't work well together, talking about how important it is to get ideas and information out into the world, rather than hoarding it. Also, there was a discussion by some who wondered if it could really be infringement to download TV shows that were broadcast over the air, since it would be hard to argue there was any harm at all. Of course, ten years later (in the wake of the Aereo decision and many other legal rulings) this argument seems fairly naive. But, still, there is a point there.

On the wireless front, people were arguing for much more open spectrum a fight that goes on today, while also speculating about whether or not Walmart might put wireless towers on each of its stores and create its own national wireless ISP (that didn't happen).

Fifteen Years Ago

The billions that were sunk into the global satellite phone company Iridium went up in smoke as the company filed for Chapter 11 bankruptcy. Search engine AltaVista (remember them?) tried to stay hip by offering free dialup access (remember dialup?). Red Hat had its IPO. We weren't too sure about this concept known as "electronic books", but we also weren't very surprised that Microsoft Internet Explorer had been crushing Netscape, since Netscape had basically given up on improving its browser.

Seventy-two years ago

Famed actress Hedy Lamarr received US Patent 2,292,387 on a "secret communications system" that was basically spread spectrum frequency hopping -- a concept that became a key part of many important wireless technologies, including WiFi, Bluetooth and some mobile phone systems.

We were writing about (surprise!) the nuttiness of copyright laws. We had a story about a professional blues and jazz musician who was absolutely baffled by the way copyright law was getting in the way of basic creativity. Meanwhile, the Associated Press, who claimed that you had to buy a license if you quoted more than 4 words of an article was happily licensing words on which it held no copyright. Over in Congress, Rep. Zoe Lofgren was beginning to wonder why the government didn't examine if copyright laws were being used in a manner that violated anti-trust laws. And, yes, people were still getting arrested for tinkering with products they bought, because obviously that's copyright infringement (huh?).

Meanwhile, Bill Gates had been criticized widely for many years for not donating much to charity. Fifteen years ago, he finally revealed his plans to give away most of his money -- something he's been following up on.

This was the week of the original Joel Tenenbaum trial, one of the only two (out of tens of thousands of people sued) that the RIAA actually took to court for file sharing. As we've explained, both Tenenbaum and the other defendant in the other case, Jammie Thomas Rasset, were horrible defendants who should have settled. The Tenenbaum case was a total disaster as it turns out that he flat out lied (don't do that). Even worse, his legal team was a complete trainwreck that seemed to have little real strategy. They appeared to bet the farm on a fair use defense that was always a ridiculous long shot (and I'm a big believer in fair use). When the court rejected the fair use argument right upfront, Team Tenenbaum appeared to have no real Plan B, leading to a total disaster of a trial, in which they failed to do the most basic things, like have an economic expert on hand to testify about the (lack of) damages. Given all that, it was no surprise that Tenenbaum lost and lost badly, being tagged for $22,500 per song, or a total of $675,000. The case went through various appeals, all of which failed. It was a bad case from the start and it never should have gone forward.

Meanwhile, we had a fun guest post from Amanda Palmer about how fans want to support artists. The family of a (deceased) artist in Denmark went after a town in Michigan that put up a statue very loosely based on the artist's own statue... which itself was based on a Hans Christian Anderson story. Oh, and Barnes & Noble claimed that it had to put DRM on public domain books to "protect" the copyright on them. Got it?

We had some misguided lawsuits. A company in France sued Google because Google Maps is free, and that was unfair competition. Taser, makers of the famed stungun technology, sued Second Life because someone had created a virtual Taser. Speaking of misguided: AT&T apparently blocked parts of 4chan. That's generally not a good idea.

Meanwhile, Barry Diller declared that "free content is a myth" and so we declared that he was a myth, noting that both claims were equally accurate. And, on that note, professional troll/reporter Dan Lyons argued that Facebook, Twitter and YouTube should all start charging. Because obviously that would have helped their business models.

Ten Years Ago:

People were expecting the iPhone... but they'd have to wait three more years. Instead, they got... a really crappy Motorola phone with a slimmed down version of iTunes. You may not remember it now, but it was a big deal the day it was announced, when they thought it was a fabled "iPhone." And then everyone realized it sucked. And the carriers killed it. And then everyone waited three more years. Speaking of mobile operator idiocy, we were telling them to stop locking down their phones. Seems relevant this week, seeing as President Obama officially signed into law (just yesterday) a bill to legalize (for now) phone unlocking.

Meanwhile, people were just getting used to this whole texting business, leading some to fret about how it was ruining family trips because kids spent the whole time texting. Of course, these days, texting on vacation can be kinda handy to keep tabs on folks. We were curious about the foolish people who respond to spam. An off duty cop decided to mace a couple in a movie theater for answering their phone. And the website JibJab was threatened for doing a parody of "This Land is Your Land," despite the fact that Woody Guthrie famously explained his view of copyright as follows: "This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."

As other Universal representatives previously explained to you, you are not
permitted to link to other sites that contain our copyrighted material
without our authorization. Not only is this activity another violation of
our intellectual property rights, it also violates your internet service
provider's terms of service.

Movie-list, for what it's worth, helped promote movies, posting their trailers and linking to the movies' own websites. Universal first demanded all the trailers be removed (which the site complied with) and then sued over the links. Perhaps even more ridiculous was the guy's ISP, who apparently freaked out when Universal contacted them. Check out this email his ISP sent to the guy who ran movie-list:

You are not a registered search engine, therefore you cannot consider
yourself under the same guidelines. Universal HAS contacted us at this
time. The situation is now that you must abide WHATEVER Universal insists
upon. If not, we will have no choice but to suspend your site. We are
bound to do so legally. Please comply with them IMMEDIATELY

Yes, back 15 years ago, it was the age when many people still thought that "deep linking" was illegal. It took until the following spring for a lawsuit to finally make it clear that linking is not infringement.

Meanwhile, this was the middle of the dot com bubble era -- and one startup was trying to IPO before it even launched because its entire business model was based on giving away its stock to users (uh, yeah). Even those crazy days, people who jumped head first into the startup game were discovering it isn't as easy as it looks. Meanwhile, Microsoft was kicking off an effort to become more well-liked in Silicon Valley (this was back in the bad old days when I didn't write very complete articles, so I never named the guy whose job it was to make Microsoft likeable, and the original article appears to be gone). Oh well.

Oh, and because some things never, ever change, we also wrote about the US government offering tax incentives to companies to provide backdoors in the encryption schemes they used.

Twenty-Five Years Ago:

We weren't publishing yet, but Robert Morris was ridiculously indicted for the Morris Worm this week. While it did take down the internet, it was never meant to be a malicious attack. Yet Morris was indicted under the (then relatively new) CFAA, becoming the first person indicted under that law. He was eventually sentenced to 400 hours of community service, 3 years of probation and a $10,050 fine -- all because his attempt to measure the size of the internet went haywire. He was the first victim of idiotic prosecutions under the CFAA, a law that still hasn't been fixed despite many others facing bogus charges. Morris went on, of course, to help found YCombinator, though he's remained mostly out of the public eye. Either way, this should be yet another reminder that it's time to reform the CFAA.

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]]>looking back back back...https://www.techdirt.com/comment_rss.php?sid=20140801/17560028087Wed, 16 Jul 2014 08:58:42 PDTRIAA Uses Copyright Claim To Disappear Historical Archive Of Radio AirchecksMike Masnickhttps://www.techdirt.com/articles/20140716/05354227891/riaa-uses-copyright-claim-to-disappear-historical-archive-radio-airchecks.shtml
https://www.techdirt.com/articles/20140716/05354227891/riaa-uses-copyright-claim-to-disappear-historical-archive-radio-airchecks.shtmlReelRadio's historical archive of radio airchecks is problematic. ReelRadio, created (and apparently last designed) in 1996, is a non-profit organization focused on preserving music radio history. Airchecks are demo reels, showing off the talents of radio announcers, and are a pretty useful and fascinating look into the history of radio. But, as far as the RIAA is concerned, ReelRadio is nothing more than a pirate site. This is despite the fact that ReelRadio actually has a license to play the music that is often incidentally included in airchecks.

“The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed,” ReelRadio President Richard Irwin explains.

And then there's this:

“The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin explains.

“Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.”

It seems like ReelRadio would have an astoundingly strong fair use defense, but actually taking on the RIAA in court is likely prohibitively expensive (and distracting), though I'd hope that the organization could find some pro bono legal support. TorrentFreak argues that the RIAA may be on "solid ground" legally, but I don't see how this doesn't pass the fair use sniff test. The purpose and character of the use clearly falls into fair use. The nature of the work (an aircheck) also clearly leans towards fair use. The amount and substantiality taken may at first look like it leans against fair use, but the recent Westlaw ruling demonstrated that when it is "necessary" to copy the entire work for the intended purpose, that also supports fair use. It's possible this could weigh against ReelRadio, given that an argument could be made that the airchecks could be "scoped" (i.e., have all music removed), but that would certainly lessen the value of the archive. And, finally, the commercial impact clearly weighs (strongly) towards fair use.

Honestly, I'm curious exactly what kind of "license" the RIAA claims to have sold ReelRadio in the first place, because now it seems like the RIAA has been ripping off ReelRadio for years, demanding payments for something that doesn't need payment. Either way, ReelRadio appears to have taken down over 1,100 of those unscoped airchecks, basically deleting them from history. Thanks, RIAA, for helping to destroy culture and hide it from public view (potentially forever) yet again.

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]]>copyright as censorshiphttps://www.techdirt.com/comment_rss.php?sid=20140716/05354227891Sat, 12 Jul 2014 12:00:00 PDTThis Week In Techdirt HistoryLeigh Beadonhttps://www.techdirt.com/articles/20140712/11270227861/this-week-techdirt-history.shtml
https://www.techdirt.com/articles/20140712/11270227861/this-week-techdirt-history.shtml
Time for another look back through Techdirt history...

Five Years Ago:

Probably the biggest news item to kick off this week in 2009 was the News Corp. phone hacking scandal: the Guardian published its expose, and while it was clearly a big deal, I don't think anyone knew just how huge it would become. With some less nefarious but highly sloppy journalism, a syndicated PC World article claimed that using the Pirate Bay costs $27.

We've got a double this week, dealing with the long history of freedom, rights and ultimately the US constitution. Firstly, on June 7th, 1628, King Charles I of England assented to the Petition of Right — an early constitutional document that is just as historically important as the Magna Carta, and from which grew the principles that would lead to the Third, Fifth, Sixth and Seventh amendments in America. Then, 161 years and one day later on June 8th, 1789, James Madison proposed the amendments that would go on to become the Bill of Rights.

An American court banned a book. I still shake my head over this. But, yes, an American court banned an unauthorized "sequel" to Catcher in the Rye, saying that it was copyright infringement... and leading us to wonder if this case put the nail in the coffin of the idea/expression dichotomy concept in copyright law.

Meanwhile, a judge was tossing out the dangerous CFAA ruling against Lori Drew (which found her guilty of a crime for "violating" MySpace's terms of service, but was really an attempt to punish her because a girl her daughter had bullied committed suicide), and Jammie Thomas began her appeals process of the RIAA's big win against her (that appeals process eventually failed). The other big story of the week was that the Pirate Bay was supposedly bought by a public company, but as more and more details came out, that story got more and more questionable, eventually leading nowhere.

There was plenty of news in the patent trolling world. Intuit paid a $120 million tax to Intellectual Ventures to avoid getting sued, there was a ridiculous interview with Erich Spangenberg, one of the biggest patent trolls out there. And, the guy after whom the term "patent troll" was originally coined, Ray Niro, found that his favorite patent -- which he claimed covered any JPEG image, and which he'd used to sue plenty of businesses who upset him in one way or another -- was smacked down.

On the copyright front, five years before the Aereo ruling came out, the Supreme Court refused to hear the appeal in the Cablevision remote DVR case that may or may not have been overturned with the Aereo ruling. In those lovely days before copyright trolling came to US shores, we were already finding out how lucrative it was overseas. Oh, and the Australian media was bleating on about laughably inaccurate claims about how piracy funds terrorists.

It was also a big week for misplaced blame. Craigslist was sued because someone holding the trademark on "call first" thought he could get money out of the company because people used that phrase in posting. L'Oreal was trying to blame eBay for users posting counterfeit goods. Police were -- no joke -- blaming Google Earth for koi thieves. Obviously. And then media execs were blaming content creators who put their work online for free for "insulting" those who paid for cable. Because free is evil.

Ten Years Ago::

A judge slapped down an attempt by famed spammer Scott Richter to sue SpamCop for blocking some of his spam. And yet, a study was pointing out that a ton of people were still buying products from spam. I wonder how much that's changed. This past week, Google finally announced that it was shutting down Orkut, one of its first attempts at building a social network, but ten years ago, the company was getting sued for appropriating the code of another company (which Orkut Buyokkokten had founded) in order to build Orkut.

The Jack Valenti era of the MPAA ended and Dan Glickman took over, making the MPAA become incredibly dull. Hard to believe that was ten years ago. Former FCC boss Michael Powell told us that "broadband over powerlines" would be the solution to a lack of competition, but as we predicted broadband over powerlines was clearly a joke played on a gullible FCC. Remember micropayment company Peppercoin? No? No one did back then, either. Ten years ago, we were also marveling about the possibility of controlling computers with body gestures. And, in less than ten years, everyone's already bored with Kinect.

Fifteen Years Ago::

Right in the middle of the original dot com bubble, we had some crazy IPOs, such as a company trying to go public on revenue of $74,000. For all the worries that we're in another bubble these days, at least we're not seeing stories like that any more. Of course, we also saw that Ask Jeeves had a great IPO leading us to wonder when Google might IPO (yes, seriously, we were wondering that back in 1999). And, of course, the greatest symbol of the dot com bubble was the funding frenzy around pet food/supply dot coms. There were a whole bunch of them, and each raised more money than the next. I even remember one insisting that it's competitive advantage was that it had outraised its competitors, and a day or so later, one of its competitors raised many millions more. Crazy days.

We weren't publishing, but President Lyndon Johnson signed the Freedom of Information Act (FOIA) into law, and it has since been a useful, if frustratingly ignored by government, tool for journalists, both professional and amateur, ever since.

In the wake of the Jammie Thomas ruling, which we discussed in last week's look back, Moby said the RIAA should be disbanded and Richard Marx (whose music was included in the lawsuit) apologized to Thomas. Meanwhile, the RIAA insisted that the ruling showed that the public is against file sharing. I think it really showed just how delusional the RIAA can be at times. Meanwhile, newspapers were accusing Google of being a "digital vampire" while judge Richard Posner was bizarrely suggesting that copyright law get a special extension just to protect newspapers from the likes of Google.

Comcast and Time Warner were working hard to limit your ability to watch TV online while ASCAP was insisting that when your phone rang in public, it was a public performance for which it should get compensated (that argument didn't fly in court). A town in Connecticut, however, told ASCAP and BMI to take a hike when they tried to demand royalties from local establishments.

Oh, and someone realized that if copyright law had been around in the time of Shakespeare, we'd probably not have a bunch of his classic plays today.

Ten Years Ago:

The MPAA's Jack Valenti was trying to rewrite history to edit out his claim to Congress that the VCR would kill the movie industry. And, on cue, his buddy, Senator Orrin Hatch was pushing a pair of absolutely terrible copyright bills in Congress: the INDUCE Act to make inducement copyright infringement and the PIRATE Act to let the FBI work on civil copyright cases as the private police force of Hollywood. Thankfully both failed to become law, though the Supreme Court effectively made the INDUCE Act law with its Grokster decision not too long after that.

Ten years ago, SBC (which became AT&T) was promising to install fiber to the home. Amusingly, we just mentioned that again this week in highlighting how AT&T has a long history of lying about these things, as it did ten years ago. Thankfully, ten years ago we were pretty skeptical, noting that the company has a history of promising things and not delivering. Turns out we were right.

Tiffany sued eBay for not policing counterfeit goods, kicking off a years-long process that (eventually) ended in courts making it clear that eBay is not liable. Those rulings have been quite important, so I guess we should thank Tiffany for losing those cases.

Finally, ten years ago this week, SpaceShipOne became the first private space ship to break the space barrier, kicking off the private space race that is still underway today. This is one of those stories that still feels like it just happened recently to me... How time flies.

Fifteen Years Ago:

We were marveling over the idea of coupons sent to mobile phones and the brave new world of online banking. Some foolish people were still using analog mobile phones that were easily hacked, leading some enterprising hackers to rebroadcast calls they were intercepting via Shoutcast. If someone did that today, the DOJ would try to lock them up for decades. And, a study found that people were more truthful over email. I wonder if that would still be true today...

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]]>back-againhttps://www.techdirt.com/comment_rss.php?sid=20140627/17335327707Tue, 24 Jun 2014 00:32:00 PDTNew Research Shows Digitization Results In Routine Lock-Down Of Public Domain BooksGlyn Moodyhttps://www.techdirt.com/articles/20140621/02255227644/new-research-shows-digitization-results-routine-lock-down-public-domain-books.shtml
https://www.techdirt.com/articles/20140621/02255227644/new-research-shows-digitization-results-routine-lock-down-public-domain-books.shtmlcomplicated that it requires a 52-page handbook to determine whether or not something is in the public domain.

In order to establish the extent to which digitized public domain books are being restricted, a sample of 100 pre-1890 books was selected from the New Zealand National Bibliography (NZNB). This sample was chosen on the assumption that these works had entered the public domain under New Zealand copyright law. Each book in the sample was searched for within six online repositories: Google Books, Hathi Trust, Internet Archive, Early New Zealand Books (ENZB), New Zealand Electronic Text Collection (NZETC) and Project Gutenberg. In addition, Google and Bing searches were conducted for all sample books that could not be located within these repositories.

Here's what the researchers discovered:

The findings of this research suggest that a high proportion of digitized public domain books are being restricted by online repositories. Out of a sample of 100 public domain books, only three are hosted by repositories that do not impose any form of usage restriction. Furthermore, 48 percent (24) of all digitized books [50 out of the 100 public domain sample] are hosted by a repository that restricts or blocks access, with the most restrictive repository limiting or blocking access to 91 percent (21) of sample books within its collection.

They also managed to pinpoint the key problem:

Almost all access restrictions applied to public domain books within the sample were the result of repositories using a process of estimation to assess copyright status. Within the sample, a one-minute search located accurate biographical information about authors two-thirds of the time. This task takes a fraction of the time required to digitize a book, which involves 30 minutes to scan 500 pages (Kelly, 2006).

A solution is the following:

Digitizers should incorporate the sourcing of copyright information within the overall process of digitization, and copyright estimation should only be used as an option of last resort. Furthermore, copyright estimation periods should better reflect statistical norms regarding the actual duration of copyright protection. The current estimation period of 140 years, used by Google Books and Hathi Trust, is far too conservative. If hosted under this policy, 47 percent of sample books would be restricted. This is despite the fact that all books with locatable biographical information were confirmed as being in the public domain for between 30 and 132 years.

This goes back to the problem of determining whether a work is in the public domain or not. Because that can be complex, those carrying out the digitization of works simply assume the worst, just to be on the safe side. That's something that needs to change, otherwise we risk losing not just the benefits of digitized public domain works, but also our undoubted rights to access them freely.

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]]>what-about-our-rights?https://www.techdirt.com/comment_rss.php?sid=20140621/02255227644Sat, 21 Jun 2014 12:00:00 PDTThis Week In Techdirt HistoryLeigh Beadonhttps://www.techdirt.com/articles/20140620/13585127637/this-week-techdirt-history.shtml
https://www.techdirt.com/articles/20140620/13585127637/this-week-techdirt-history.shtml
Let's get started on another look back through Techdirt history.

Five Years Ago...

Well, there's one big event from 2009 that you'll surely remember: a jury deciding to fine Jammie Thomas $1.92-million, or $80,000 per song. Even though Thomas made a big mistake by not settling, the insanely huge award raised a lot of eyebrows — including those of the EFF, which questioned the constitutionality of the decision — prompting the RIAA to go on the defensive and attempt distance itself from the giant numbers. Meanwhile, an even more absurd case nearly slipped under the radar when a woman who didn't even own a computer made a zero-dollar settlement over a filesharing lawsuit that never should have been brought in the first place.

Oh, and some were saying that the much-hyped internet was underhyped. They weren't entirely wrong, though "hype" is a tough thing to measure — but the original article is still up if you want to see some of their predictions.

174 Years Ago...

On June 20th, 1840, Samuel Morse received his patent on the telegraph. Also on June 20th, but 37 years later in 1877, Alexander Graham Bell opened the world's first commercial telephone service in Hamilton, Ontario, just an hour's drive from where I type this. Communication technology advanced a little slower in those days.